Section 377 to Ayodhya, CJI Dipak Misra has miles to go before he retires

CJI Dipak Misra. Illustration: Ajay Mohanty
The coming two months are crucial to the Supreme Court both judicially and administratively. All the cards are with Chief Justice Dipak Misra, who will retire on October 2. The legal profession and the nation itself are watching how he will handle the unprecedented situation.

Judicially, he is presiding over a five-judge constitution bench that has already given important judgments affecting citizen’s rights and society as a whole. The privacy judgment asserting this precious right of the citizens has charted new grounds in this field and clarified the parameters of executive interference.  The bench has just reserved judgment on LGBT (lesbian, gay, bisexual, transgender) rights and all indications are that the country will be freed from the colonial constraints on private behaviour.

 There are more in store. The Dipak Misra bench has now taken up the right of young women to enter the famous Sabarimala temple where the deity is a brahmachari. Another knotty question: Is adultery a crime if sex is consensual? The Indian Penal Code is again accused of being a remnant of a different era. 

While these issues have deep consequences for society, political questions are also in line before the Misra bench. Whether convicted persons can be lawmakers is one such.  The bench has just delivered a massive judgment asserting the power of the elected Delhi government to take its own decisions without the consent of the Lt Governor. There are several supplementary topics yet to be sorted out, such as who controls the bureaucracy. 

 The Ayodhya dispute is still being heard by the Misra bench, in a truncated manner on Fridays. The case has not moved forward much, as the first question is whether a mosque is necessary for prayer in Islam. Whether this issue has to be referred to a constitution bench is still being argued. Therefore, the question of title to the land and right to build another place of worship will follow much later, not before the general elections or the retirement of Justice Misra. 

The Chief Justice has shown in recent judgments that he is on the liberal side, or at least that he has shifted to that flank. He has been advocating singing of national anthem in cinemas and other places since he was the chief justice of the Madhya Pradesh High Court. He carried his zeal to the Supreme Court where he gradually realised that patriotism cannot be thrust down the citizen’s throat. His bench slowly read down the order and ultimately dribbled the ball to the Parliamentary court.  As if to make up for such mistakes, the Chief Justice has apparently swung to the other side and delivered judgments that will put him in the hall of fame.

Last week, he made several directions to curb the new menace of lynching, though ultimately he left it to the government to pass a law in this regard. He has also passed strong interim orders against builders who don’t deliver flats to buyers. He also brought in the idea of a "living will" in a constitution bench judgment allowing a terminally ill person ask  to his relatives not to prolong his painful life by artificial means.

So much for the judicial side. On the administrative side he is facing some of the greatest challenges ever faced by a chief justice. The press conference of four senior-most colleagues and their warning that the institution is in danger is still echoing. Their allegation was that the Chief Justice was allotting sensitive cases to certain judges to get desired results. The mysterious death of Judge B H Loya, who was handling the Sohrabuddin case, was one such example, according to them. Ultimately, the Chief Justice withdrew that case to his own bench and dismissed the plea to investigate the judge’s sudden death. The judgment went ahead and admonished the lawyers who could think of wild conspiracy theories. Similarly, petitions casting aspersions on his role in the Lucknow medical scam in which  a college without infrastructure was given sanction, were also deflected.

The Dipak Misra bench has asserted in a judgment that the chief justice is the Master of Rolls and it is his prerogative to allot cases to different benches. This ruling was criticised because he was deciding his power himself, instead of recusing himself from the bench. This decision was asserted in two other judgments leaving no room to doubt who is the master.

 These instances had led to an unprecedented impeachment move, which was withdrawn without doing much damage to the institution. There are still several imponderables clouding Justice Misra’s term in office. A new collegium to select judges has to be set up as the arch rebel, Justice Jasti Chelameswar, who led three others to the presser, has retired. The Chief Justice has not shown any urgency to set it up, though the court reopened after the summer vacation on July 2. The delay is affecting appointments to the court which is already working with some ten judges short and the backlog of cases is mounting. Another hush-hush speculation is whether the Chief Justice would recommend the elevation of Justice Ranjan Gogoi, the No 2 and one who joined the Chelameswar-led rebels. 
 The crisis is exacerbated by the uneasy relationship between the collegium headed by the Chief Justice and the government. The elevation of Justice K M Joseph of the Jharkhand High Court has proved to be a stumbling block with the government opposing his name, inviting allegations that it is being revengeful due to his ruling against President’s rule in the state. 

Meanwhile, the Chief Justice is running against time. The Aadhaar case took 38 days in four and a half months. He has now speeded up hearings and the LGBT one took just four days to conclude. The judges not only have to hear cases but write judgments in them after holding conferences and exchanging drafts among his brethren. The judicial and administrative work in Chief Justice's hands is so stupendous that the nation should wish that justice would not suffer due to haste.